The Act will only apply in Great Britain – separate legislation would be required for Northern Ireland, although the Equality Commission for Northern Ireland have indicated they may consult on corresponding changes in the near future.
The Equality Act aims to:
• consolidate, harmonise and clarify existing equality law into a single piece of legislation;
• place certain case law developments on a statutory footing; and
• introduce a number of new requirements and prohibitions.
The main provisions that employers should prepare for include:
Limiting the use of pre-employment health questionnaires
The provision is designed to discourage employers from asking candidates about medical issues before an offer or conditional offer of employment has been made and will mean that pre-employment health questionnaires should not be used as an initial applicant screening tool. Employers that ask health questions too early could be found to have directly discriminated against a disabled candidate and, if an applicant is rejected as a result, the burden of proof in tribunal would shift to the employer.
Questions regarding anonymous disability monitoring and required adjustments to interview facilities may still be asked. As may fair questions relating to ability to do the job such as asking applicants for an electrician’s job whether they are colour blind. Employers will also still be able to withdraw a job offer if a subsequent health questionnaire shows a candidate is not capable of doing the job and reasonable adjustments cannot be made to the workplace.
Positive action in recruitment and promotion
The Act will enable employers to take under-representation into account when selecting for recruitment between two equally qualified candidates. For example, employers of white, male dominated workforces will, if they so wish, be able to give preference to female or ethnic minority candidates so long as they are otherwise equally qualified. The Equality and Human Rights Commission (EHRC) are to issue clear guidance in this regard as there are a number of potential pitfalls for unwary employers. Assessments of under-representation and whether or not individuals are “as qualified” as others, will inevitably be exposed to scrutiny by Tribunals.
Restriction of pay secrecy clauses
Employers will no longer be able to rely on keeping their pay structures secret. Secrecy clauses in employment contracts will be unenforceable against employees involved in a relevant pay disclosure.
Ban on discrimination by association
The Act will extend the law on direct discrimination to include discrimination by “association” and “perception” to disability, sex, gender reassignment and age. In essence, this will put the European Court of Justices 2008 ruling in the Coleman v Attridge Law case on a statutory footing.
Harassment by third parties
The Act provides express protection against persistent harassment of employees by third parties, such as customers or suppliers, across all grounds. The new rules will apply to harassment related to race, sexual orientation, religion, disability, age, and gender reassignment. Similar protection already applies to sexual harassment. Employers should consider additional training to equip staff with the skills to have potentially difficult conversations with customers or service users. Employers will only be held responsible if they know that the employee has been subject to harassment in the course of their employment on at least two other occasions by a third party. This ‘three strikes’ rule is designed to ensure employers are not liable unless something has happened to put them on notice that the employee is at risk, and have had an opportunity to act to put a stop to any inappropriate conduct.
Enhanced tribunal powers
Tribunals will have the power to order organisations found guilty of discrimination against a single employee to make recommendations, such as implementing an equal opportunities policy or reviewing pay policies, applicable to the whole workforce and not just the successful claimant. Failure to comply with such recommendations could be taken into account in any further claims against the employer.
Caste discrimination could be outlawed
The Act includes a power to legislate specifically for caste discrimination (social standing in the Hindu and Sikh communities) if available evidence shows this to be appropriate. A report on this issue is due to be published in August 2010, with consultation to follow.
Single equality duty (from April 2011)
The Act will create a single equality duty on public sector employers and private bodies that deliver a public function. The single duty will continue to cover race, gender and disability, but will be extended to cover age, sexual orientation, religion or belief, pregnancy and maternity, and gender reassignment.
The Act will not seek to impose statutory duties on the private sector to promote diversity, but will use public sector procurement to hold firms to account.
The Act will also introduce a new public sector duty to consider reducing “socio-economic” inequality from 2011 applicable to certain key public bodies in respect of strategic decisions
Gender pay gap audits
Public bodies with more than 150 employees will be required to report on gender pay as well as other equality data including the number of black, Asian and minority ethnic workers, by April 2011. The Act will also enable the government to require all employers with more than 250 employees to report their gender pay gap from 2013, if sufficient progress on reporting has not already been made voluntarily. The EHRC will develop a set of metrics for gender pay reports in consultation with business, unions and others over the summer, and the Commission will then monitor the progress of reporting within the private sector annually.
It is worth noting that the Conservatives have announced that, should they come to power, they would not bring into force some aspects of the Act such as the positive action provisions and the socio-economic duty. They have also stated that they would require gender pay audits only from employers who had actually been found liable for gender discrimination at Tribunal.
The EHRC is due to publish non-statutory guidance and new draft Codes of Practice on the employment-related aspects of the Act in summer 2010.
We will of course keep all subscribers up to date with any information regarding The Equality Act 2010. Clients can of course call the Advice Service on 0844 892 2772 and speak to one of our trained specialists about this, or any other piece of legislation you are unsure about.